Thursday, 30 March 2006
Telecommunications (Interception) Amendment Bill 2006
The government has expressed its view on this previously. It is quite clear that when you are setting out to obtain a warrant of this sort you have a belief that this will be relevant to an investigation of a serious matter, but you never know—and nor could any person know—what it is going to turn up. You do not have a crystal ball which can tell you exactly what information will be discovered as a result of the warrant. And so, over a long period of time, our justice system has operated on the basis that law enforcement obtains a warrant under a strict regime.
Once the grounds have been made out, the warrant is issued and then the warrant turns up evidence. The police, or whoever is investigating the matter, then put together a brief. It goes to the DPP, to the court and to the prosecution. It is during the hearing in court that the court itself determines what is admissible as evidence. Before the matter even gets to court, the prosecuting authority will determine what will be led as evidence and what will not. Any good prosecutor worth his or her salt is not going to lead evidence which is going to be inadmissible or which is blatantly inadmissible. They will fall out of favour with the court if they do that too often. In any event, the court is the arbiter of what is admissible, and we believe that that is how it should continue to operate.
The theme of this debate is the same as saying that you should limit what you can access before you know what exactly is going to be turned up. Critics of that might turn around and say: ‘There’s our point. You don’t know what’s there and that’s the danger of it all.’ I point out that when a warrant is issued the issuing authority can impose conditions. They could include one which brought to the attention of the law enforcement agency the fact that there might be issues of professional privilege involved.
Warrants are the subject of annual reporting to the parliament. Whilst the details of the warrants are not, certainly the detail of any condition of a warrant can be the subject of judicial proceedings. If there were an abuse, one could, through judicial avenues, challenge the issuing of the warrant, what conditions are on it and whether the law enforcement agency concerned followed the conditions of the warrant. It would not be the first time in Australia’s history that a warrant has been challenged or the details of it have been questioned. The law books are full of those sorts of challenges. But I am saying that this continues the current regime, which is appropriate. Inadmissibility, or otherwise, of evidence is best left to the courts, and it is impossible to impose on anyone the ability to say, ‘If I execute this warrant, I will or will not come across legal professional privilege.’
I hasten to add: there have been cases where lawyers themselves have been charged. We have seen that recently in notable cases in Australia involving drug trafficking and other cases, where lawyers have been charged and have been part and parcel of the alleged criminal operation. So it is not as if lawyers are out there in an area where they should not be subject to scrutiny. We canvassed this yesterday, and we believe that the current regime should continue to operate in the format in which it has been operating successfully for some time.